Superior Court Rules

ORDER 55

THE EXAMINER

I. Powers and duties

1. The Examiner shall take such accounts and conduct such inquiries as may be ordered by the court, and may make such orders of an interlocutory nature as have heretofore been made by the Examiner, and shall perform and fulfil such other duties and functions as have heretofore been performed and fulfilled by the Examiner or as shall from time to time be conferred on or assigned to him by statute or rule of court.

2. The Examiner shall, for the purpose of any proceedings before him have power to issue advertisements, to summon parties and witnesses, to administer oaths, to require the production of documents, to take affidavits and acknowledgements, and, where an account consists in part of a bill of costs, to request the Legal Costs Adjudicator to assist in settling such costs by adjudicating such bill, and when so directed by the Court, to examine parties and witnesses either upon interrogatories or viva voce.

[SI 584/19]

3. Parties and witnesses required to attend before the Examiner shall be liable to process of contempt in like manner as parties or witnesses are liable thereto in case of disobedience to any order of the court, or in case of default in attendance, in pursuance of any order of the court or of any subpoena ad testificandum, and all persons swearing or affirming before the Examiner, shall be liable to all such penalties, punishments, and consequences for any wilful and corrupt false swearing or affirming, as if the matters sworn or affirmed had been sworn and affirmed before any other person by law authorised to administer oaths, to take affidavits, and to receive affirmations.

4. The court may direct any computation of interest, or the apportionment of any fund, to be certified by the Examiner, and to be acted upon by the Accountant or other person without further order.

5. The notice requiring the attendance before the Examiner of parties, witnesses, or others shall be in the Form No 2 in Appendix G.

6. At any time during the proceedings under any order, the court or the Examiner may require a guardian ad litem to be appointed for any infant or person of unsound mind not so found by inquisition, who has been served with notice of such order.

II. Documents to be left at the Examiner’s Office

7. In all cases of proceedings under any order, the party prosecuting the same shall leave a copy of such order at the Examiner’s Office; such copy shall be certified by such party or his solicitor to be a true copy.

8. A note stating the names of the solicitors for all the parties, and showing for which of the parties such solicitors are concerned, shall be left at the Examiner’s Office with every order, together with plain copies of the originating summons, pleadings and affidavits (if any).

9. Where notice of an order has been served in pursuance of Order 15, rule 31, the party prosecuting the same shall leave at the Examiner’s Office:

(a) a copy, certified by him or his solicitor, of every appearance entered by a person served with such notice, and

(b) a certificate of the proper officer of the entry of a memorandum of service of such notice upon those persons who have not, within one month of service upon them, entered an appearance.

III. Notice to proceed

10. An attested copy of every order directing accounts or inquiries to be taken or made shall be left at the Examiner’s Office by the party entitled to prosecute the same within 10 days after the same shall have been perfected and in default thereof any other party to the cause or matter shall be at liberty to leave the same, and such party shall have the prosecution of such order unless the court shall otherwise direct.

11. Upon a copy of the order being left at the Examiner’s Office, a notice to proceed under the order shall be taken out, and upon the return day of such notice the Examiner, if satisfied by proper evidence that all necessary parties have been served with notice of the order, shall thereupon give directions as to the manner in which each of the accounts and inquiries is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend on the several accounts and inquiries, and the time within which each proceeding is to be taken, and a day or days may be appointed for the future attendance of the parties, and all such directions may afterwards be varied, by addition thereto or otherwise, as may be found necessary. Such notice to proceed shall be in the Form No 1 in Appendix G.

12. Where by an order a deed is directed to be settled by the court in case the parties differ, a notice to proceed shall be issued, and upon the return day of the notice the party entitled to prepare the draft deed shall be directed to deliver a copy thereof, within such time as the Examiner shall think fit, to the party entitled to object thereto, and the party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections (if any) within eight days after the delivery of such copy, and the proceeding shall be adjourned until after the expiration of the said period of eight days.

13. Where it appears that by reason of absence, or for any other sufficient cause, the service of notice of the order upon any person cannot be made or ought to be dispensed with, the court may wholly dispense with such service, or may order any substituted service or notice by advertisement or otherwise in lieu of such service.

14. Where service on any person of notice of an order is dispensed with, the court may order that such person shall be bound as if served, and he shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.

15. If, on the hearing of the notice to proceed, it shall appear that all necessary parties are not parties to the action, or have not been served with notice of the order, directions may be given for advertisement for creditors, and for leaving the accounts in the Examiner’s Office, but the adjudication on creditors’ claims and the accounts shall not be proceeded with, and no other proceeding shall be taken, except for the purpose of ascertaining the parties to be served, until all necessary parties shall have been served and are bound, or service shall have been dispensed with, and until directions shall have been given as to the parties who are to attend on the proceedings.

16. The course of proceeding before the Examiner shall ordinarily be the same as the course of proceeding in court upon motions. No statement of facts, charges or discharges, shall be brought in unless by the special direction of the court. Copies, abstracts, or extracts of or from accounts, deeds, or other documents and pedigrees and concise statements shall, if directed, be supplied for the use of the court and the Examiner, and, where so directed, copies shall be delivered to the other parties. No copies shall be made of deeds or documents where the originals can be brought in, unless the court shall otherwise direct.

IV. Appointment Book

17. At the time any notice to proceed is taken out or any appointment is obtained, an entry thereof shall be made in ‘the Appointment Book’.

18. Matters coming before the Examiner shall, unless the court otherwise directs, when ready for hearing be entered in daily lists, and taken in their order on such lists; and every matter commenced shall be continued until completion, subject to such adjournments as the Examiner shall for good cause consider necessary and upon such terms as to costs or otherwise as he shall deem proper.

V. Attendances

19. Where, upon the hearing of the notice to proceed, or at any time during the prosecution of the order, it appears with respect to the whole or any portion of the proceedings, that the interests of the parties can be classified, the court may require the parties constituting each or any class to be represented by the same solicitor, and may direct what parties may attend all or any part of the proceedings, and where the parties constituting any class cannot agree upon the solicitor to represent them, the court may nominate such solicitor for the purpose of the proceedings before it and where any one of the parties constituting such class declines to authorise the solicitor so nominated to act for him, and insist upon being represented by a different solicitor, such party shall personally pay the costs of his own solicitor of and relating to the proceedings before the court, with respect to which such nomination shall have been made, and all such further costs as shall be occasioned to any of the parties by his being represented by a different solicitor from the solicitor so nominated.

20. Whenever the same solicitor is employed for two or more parties, the court may require that any of the said parties shall be represented by a distinct solicitor other than the town agent of such first-mentioned solicitor, and adjourn the proceedings until such party is so represented.

21. Any party other than those who shall have been directed to attend may attend at his own expense, and upon paying the costs, if any, occasioned by such attendance, or he may apply for liberty to attend at the expense of the estate, or to have the conduct of the action either in addition to or in substitution for any of the parties who shall have been directed to attend.

22. An order shall be drawn up, on a notice to be issued by the plaintiff or the party having the conduct of the action, or other proceeding, stating the parties who shall have been directed to attend and such of them (if any) as shall have elected to attend at their own expense, and such order shall be recited in the Examiner’s certificate.

VI. Advertisements for creditors and claimants

23. Where an order is made directing an account of debts, claims or liabilities, or an inquiry for heirs, next-of-kin, or other unascertained persons, all persons who do not come in and prove their claims within the time which may be fixed for that purpose by advertisement, shall, unless otherwise ordered, be excluded from the benefit of the order. Such advertisement shall be by notice in the press or by such other means as the court may direct.

24. Where an advertisement is required for the purpose of any proceeding before the Examiner only one shall be issued, unless for any special reason it may be necessary to issue a second or further advertisements. An advertisement may be repeated as many times and in such manner as may be directed.

25. The advertisements for claimants and creditors shall be prepared by the party prosecuting the order, and submitted to the Examiner for approval, and when approved shall be signed by him.

26. Advertisements for creditors and other claimants shall fix a time within which each claimant, not being a creditor, is to come in and prove his claim, and within which each creditor is to send to the executor or administrator of the deceased, or to such other party as may be directed or to his solicitor, to be named and described in the advertisement, the name and address of such creditor and the full particulars of his claim, and a statement of his account and the nature of the security (if any) held by him. Such advertisements shall be in one of the Forms Nos 3, 4, 5 and 6 in Appendix G. At the time of directing such advertisement a time shall be fixed for adjudicating on the claims.

27. The person who examines the claims shall produce at the hearing attested copies of the affidavits filed by claimants, unless the court shall otherwise direct.

28. No creditor or other claimant need make any affidavit nor attend in support of his claim (except to produce his security) unless he is served with a notice requiring him to do so as hereinafter provided.

29. Every creditor shall on request produce the security (if any) held by him, and shall, if required by notice in writing given by the executor or administrator of the decreased, or by such other party as the court shall direct, produce all other deeds and documents necessary to substantiate his claim before the Examiner at such time as shall be specified in such notice. The notice shall be in the Form No 7 in Appendix G.

30. In case any creditor shall neglect or refuse to comply with rule 29, he shall not be allowed any costs of proving his claim unless the court shall otherwise direct.

31. The executor or administrator of the deceased, or such other party as may be directed shall examine the claims of creditors sent in, pursuant to the advertisement, and shall ascertain, so far as he is able, to which of such claims the estate of the deceased is justly liable, and he shall, at least seven clear days prior to the time appointed for adjudication, file an affidavit in the Form No 8 in Appendix G to be made by such executor or administrator, or one of the executors or administrators, or such other party, jointly with his solicitor or otherwise, as the court shall direct, verifying a list of the claims in the Form No 9 in Appendix G, the particulars of which have been sent pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the deceased is, in the opinion of the deponent justly liable, and his belief that such claims or parts thereof respectively, are justly due and proper to be allowed and the reasons for such belief.

32. In case the Examiner shall think fit so to direct the making of the affidavit referred to in rule 31 shall be postponed till after the day appointed for adjudication, and shall then be subject to such directions as the Examiner may give.

33. Where on the day appointed for hearing the claims any of them remain undisposed of, the hearing of such claims shall be adjourned to such day as may be fixed, and where further evidence is to be adduced, a time may be named within which the evidence on both sides is to be closed and directions may be given as to the mode in which such evidence is to be adduced.

34. At the time appointed for adjudicating upon the claims of creditors or at any adjournment thereof, the Examiner may, in his discretion, allow any of the claims, or any part thereof respectively without proof by the creditors, and direct investigation of all or any of the claims not allowed, and require further particulars, information, or evidence relating thereto, and may, require any creditor to attend and prove his claim, or any part thereof, and the adjudication on such claims as are not then allowed shall be adjourned to a day to be then fixed.

35. (1) Where the claim of any creditor has been allowed, in whole or in part, without proof by such creditor, notice of such allowance shall be given to him in the Form No 10 in Appendix G by the executor or administrator or such other party as may be directed.

(2) Where any creditor is required to attend and prove his claim or any part thereof, notice shall be given to him in the Form No 11 in Appendix G by the executor or administrator or such other party as may be directed, requiring him to file an affidavit in support of his claim within such time (not being less than seven days after service of such notice) as may be specified in the notice and to attend at the time specified in such notice for adjudicating on such claim. If the creditor shall fail to comply with such requirements, his claim or the part thereof required to be proved shall be disallowed.

36. No claim shall be received after the time fixed by the advertisement except by special leave of the court. Application for such leave shall be made by motion on notice and it may be granted upon such terms and conditions as the court shall direct.

37. A creditor who has been required to attend and prove and has established his debt shall be entitled to the costs of so doing and the sum to be allowed for such costs shall be fixed by the court, unless the court shall direct the taxation thereof; and the amount of such costs, or the sum allowed in respect thereof, shall be added to the debt so established.

38. A list of all claims allowed shall, when required, be made out and left with the Examiner by the person who examines the claims.

39. Where any order is made for payments by the Accountant to creditors, the party whose duty it is to prosecute such order shall send to each such creditor or his solicitor (if any) a notice in the Form No 12 in Appendix G that the drafts may be received from the Accountant, and such party shall, when required, produce such order and any other papers necessary to enable such creditors to receive their drafts and get them passed.

40. Every notice by this Order required to be given to creditors or other claimants shall, unless the court shall otherwise direct, be served through the Examiner’s Office on the creditor or other claimant at the address given in his claim, or, in case such creditor or other claimant shall have employed a solicitor, on such solicitor at the address given by him.

[SI 2/11]

VII. Interest

41. When an order directs an account of the debts of a deceased person, interest shall (except in the case of insolvent estates or where otherwise ordered) be computed on such debts as to such of them as carry interest at the rate they respectively carry, and as to all others at the rate standing specified in section 26 of the Debtors (Ireland) Act, 1840 from the date of the order.

42. A creditor whose debt does not carry interest and who established the same pursuant to an order of the court shall be entitled to interest thereon at said rate per cent per annum from the date of the order out of any assets available therefor after the satisfaction of all prior claims.

43. Where an order is made directing an account of legacies, interest shall be computed on such legacies at said rate per cent per annum from the end of one year after the testator’s death, unless otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will.

VIII. Examiner’s certificate

44. The result of any proceedings before the Examiner shall be stated in the form of a concise certificate to the court. Unless an order to discharge or vary the same is made, the certificate shall be deemed to be approved and adopted by the court.

45. The Examiner’s certificate shall not, unless the circumstances of the case render it necessary, set out the order or any documents or evidence or reasons, but shall refer to the order, documents, and evidence or particular paragraphs thereof, so that it may appear upon what the result stated in the certificate is founded.

46. The Examiner’s certificate shall be in the Form No 16 in Appendix G and shall be signed by the Examiner.

47. Where an account is directed, the certificate shall state the result of such account, and not set the same out by way of schedule, but shall refer to the account verified by the affidavit filed, and shall specify, by the numbers attached to the items in the account, which (if any), of such items have been disallowed or varied, and shall state what additions (if any) have been made by way of surcharge or otherwise, and where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account as altered, such transcript may be required to be made by the party prosecuting the order, and shall then be referred to by the certificate. The accounts and the transcripts (if any) referred to in the certificate shall be filed in the Examiner’s Office.

[SI 2/11]

48. Any party or other person interested may, before the proceedings before the Examiner are concluded, take the opinion of the court upon any matter arising in the course of the proceedings upon notice given to all proper persons. Such notice shall be in one of the Forms Nos 14 and 15 in Appendix G.

49. Every certificate, with the accounts (if any) to be filed therewith, shall be filed in the Examiner’s Office, and shall thenceforth be binding on all parties to the proceedings unless discharged or varied upon application by motion of which notice shall have been served within eight days of such filing; provided that in case of an application to discharge or vary any certificate to be acted upon by the Accountant without further order, or any certificate on passing receivers’ or liquidators’ accounts, the notice shall be served within three days after the filing of the certificate.

[SI 2/11]

50. The court may, in special circumstances, upon an application by motion for the purpose, direct a certificate to be discharged or varied at any time after the same has become binding on the parties.

IX. Miscellaneous

51. Notes shall be kept of all proceedings before the Examiner with proper dates, so that all such proceedings in each cause or matter may appear consecutively, and in chronological order, with a short statement of the questions or points decided or ruled at every hearing.

52. Every order of the Court in matters of bankruptcy or arrangement or in any other case in which an account or inquiry has been directed to be taken by the Examiner and a notice to proceed has issued in accordance with Order 55, rule 11, and all orders made by the Examiner, shall be issued out of the Examiner’s Office.

[SI 255/15]

53. Counsel shall not be heard in proceedings before the Examiner unless the court shall otherwise direct.

54. The Forms Nos 17 to 31 in Appendix G shall be used for the respective purpose therein mentioned.

____________________

Appendix G: Form No 17 - Affidavit Verifying Accounts And Answering Usual Inquiries As To Real And Personal Estate;
Appendix G: Form No 18 - Account Of Personal Estate, Being Account A. Referred To In Form No. 17;
Appendix G: Form No 19 - Appendix G: No 19 - Account Of Rents And Profits, Being The Account B. Referred To In Form No 19;
Appendix G: Form No 25 - Affidavit Verifying Abstract;
Appendix G: Form No 26 - Affidavit Verifying Engrossments Of Deeds

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